Referendum to change section 44 should be held at election, law expert says

A referendum should be held at the next federal election to change the section of the constitution forbidding dual citizens being elected to parliament, one of Australia's leading constitutional lawyers has said.

George Williams, a Dean of Law at the University of New South Wales, said a referendum should be held to alter section 44 of the Constitution to allow for parliament to determine the criteria that MPs are disqualified if they are dual citizens.

The High Court has been the deciding factor as to whether MPs are disqualified from parliament.Credit:LUKAS COCH

The calls for change were laid out in a recent submission to a parliamentary inquiry on the constitutional section that caused multiple MPs to resign or be removed from federal parliament in 2017.

In the submission, Professor Williams said the phrase "until the Parliament otherwise provides" should be inserted at the beginning of section 44 following a successful referendum, removing ambiguity as to how MPs can be kicked out of office.

Advertisement

Constitutional law expert George Williams.Credit:Jim Rice

"This would leave the existing disqualification criteria in place, as a transitional measure, but would enable parliament to tweak these criteria as required through the passage of legislation," the submission said.

"It would also allow parliament freedom to amend the disqualification criteria as needed, while leaving a constitutional standard in place where no changes have been made."

Professor Williams said a referendum on the matter should be held concurrently with the next federal election in order to minimise costs.

"This would allow adequate time to build a public case for change, and would be significantly cheaper than a standalone referendum," he said.

Katy Gallagher's dual citizenship case is currently before the High Court.Credit:Alex Ellinghausen

Among the reasons for the constitutional change laid out in the submission, Professor Williams said section 44 was an "increasingly maladapted mechanism" for dealing with disqualifications from parliament.

He said the purpose of section 44, to ensure that parliamentarians are "singularly loyal to Australia" does not require an MP to step down if they are unknowingly a dual citizen.

In a separate submission to the inquiry constitutional law professor at the University of Sydney, Anne Twomey, said the Australian Electoral Commission should publish a checklist for candidates and parties as to what needed to be done before the nomination process was completed.

"It could, for example, advise candidates to identify the birth places of themselves, their parents and grandparents and any foreign nationality that might have been held by any of them, including by marriage, place of birth or descent," Professor Twomey said.

The professor said in her submission that she was "sceptical" that legislation could be changed to avoid MPs breaching section 44.

The submissions to the inquiry come as the High Court is reviewing the case of ACT Labor senator Katy Gallagher, who was a British citizen until more than a month after the 2016 election.

Professor Williams said in his submission that Senator Gallagher's case could potentially clarify whether a candidate taking all reasonable steps would be enough for a candidate to divest themselves of foreign citizenship.

"It is unlikely to do so comprehensively, as what constitutes 'reasonable steps' may vary from country to country, and depending on broader circumstances," he said.

"We believe that an adequate long-term solution to this issue requires the implementation of clear rules that accord with community standards and that operate in a manner that is readily ascertainable by prospective candidates.

"This can only be achieved through constitutional change following a successful referendum."